Many employees believe they have an absolute right to privacy while at work. They are wrong.
Today, employees freely use technology at work without appreciating that they may be providing their employers access to their own private data. Trusting that employers will refrain from monitoring readily available private information is reckless.
The issue of privacy rights in the workplace is a developing area of Canadian law. Recent cases suggest that employees are entitled to have some expectation to privacy at work, however, the extent of these privacy rights remains blurred.
In one case, the court found that the installation of a “secret camera” in an employee’s office was an invasion of her privacy. The court found the employer’s conduct amounted to a breach of contract, justifying the employee’s resignation. It then awarded her wrongful dismissal damages. However, the court sent the following warning: had a plausible explanation been provided for the “secret camera,” the intrusion may have been acceptable.
In another case, an employee sued McDonald’s for invasion of privacy for having conducted a credit check without authorization. At a preliminary hearing, McDonald’s attempted to have the case thrown out of court by arguing that a claim based on invasion of privacy was not proper. The court allowed the lawsuit to proceed.
Employees do have privacy rights at work. However, these rights must be balanced against employers’ legal and business interests to monitor its workplace. Courts will be reluctant to overstep an employer’s right to police its own workplace, unless it can be shown that an intrusion was uncalled for.
The following are some simple guidelines for employees to retain whatever privacy rights the courts will afford them:
- Assume you are always being monitored at work – if you do not wish others to see personal data, don’t access it at work.
- Familiarize yourself with existing company policies regarding the use of technologies at work.
- Immediately protest a suspected intrusion and seek specialized advice before taking any further action.
Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com.
